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[2020] Hkcfa 42 in the Court of Final Appeal of The

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[2020] Hkcfa 42 in the Court of Final Appeal of The Press Summary (English) Press Summary (Chinese) FACV Nos. 6, 7, 8 and 9 of 2020 [2020] HKCFA 42 FACV Nos. 6 and 7 of 2020 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NOS. 6 and 7 OF 2020 (CIVIL) (ON APPEAL FROM CACV NOS. 542 AND 583 OF 2019) _________________________ BETWEEN KWOK WING HANG 1st Applicant CHEUNG CHIU HUNG 2nd Applicant TO KUN SUN JAMES 3rd Applicant LEUNG YIU CHUNG 4th Applicant JOSEPH LEE KOK LONG 5th Applicant MO, MAN CHING CLAUDIA 6th Applicant WU CHI WAI 7th Applicant CHAN CHI-CHUEN RAYMOND 8th Applicant LEUNG KAI CHEONG KENNETH 9th Applicant KWOK KA-KI 10th Applicant WONG PIK WAN 11th Applicant IP KIN-YUEN 12th Applicant YEUNG ALVIN NGOK KIU 13th Applicant ANDREW WAN SIU KIN 14th Applicant CHU HOI DICK EDDIE 15th Applicant LAM CHEUK-TING 16th Applicant SHIU KA CHUN 17th Applicant TANYA CHAN 18th Applicant HUI CHI FUNG 19th Applicant KWONG CHUN-YU 20th Applicant TAM MAN HO JEREMY JANSEN 21st Applicant FAN, GARY KWOK WAI 22nd Applicant AU NOK HIN 23rd Applicant CHARLES PETER MOK 24th Applicant (Appellants) and CHIEF EXECUTIVE IN COUNCIL 1st Respondent SECRETARY FOR JUSTICE 2nd Respondent (Respondents) _________________________ FACV No. 8 of 2020 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 8 OF 2020 (CIVIL) (ON APPEAL FROM CACV NO. 541 OF 2019) _________________________ BETWEEN LEUNG KWOK HUNG (梁國雄) Applicant (Appellant) and SECRETARY FOR JUSTICE 1st Respondent CHIEF EXECUTIVE IN COUNCIL 2nd Respondent (Respondents) _________________________ FACV No. 9 of 2020 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 9 OF 2020 (CIVIL) (ON APPEAL FROM CACV NO. 542 OF 2019) _________________________ BETWEEN KWOK WING HANG 1st Applicant CHEUNG CHIU HUNG 2nd Applicant TO KUN SUN JAMES 3rd Applicant LEUNG YIU CHUNG 4th Applicant JOSEPH LEE KOK LONG 5th Applicant MO, MAN CHING CLAUDIA 6th Applicant WU CHI WAI 7th Applicant CHAN CHI-CHUEN RAYMOND 8th Applicant LEUNG KAI CHEONG KENNETH 9th Applicant KWOK KA-KI 10th Applicant WONG PIK WAN 11th Applicant IP KIN-YUEN 12th Applicant YEUNG ALVIN NGOK KIU 13th Applicant ANDREW WAN SIU KIN 14th Applicant CHU HOI DICK EDDIE 15th Applicant LAM CHEUK-TING 16th Applicant SHIU KA CHUN 17th Applicant TANYA CHAN 18th Applicant HUI CHI FUNG 19th Applicant KWONG CHUN-YU 20th Applicant TAM MAN HO JEREMY JANSEN 21st Applicant FAN, GARY KWOK WAI 22nd Applicant AU NOK HIN 23rd Applicant CHARLES PETER MOK 24th Applicant (Respondents) and CHIEF EXECUTIVE IN COUNCIL 1st Respondent SECRETARY FOR JUSTICE 2nd Respondent (Appellants) _________________________ (HEARD TOGETHER) Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Lord Hoffmann NPJ Dates of Hearing: 24-25 November 2020 Date of Judgment: 21 December 2020 _________________________ JUDGMENT _________________________ The Court: A. Introduction 1. As is now a matter of public record, between June and October 2019, Hong Kong, a city long regarded as safe, experienced an exceptional and sustained outbreak of violent public lawlessness. The evidence of these extraordinary events is essentially common ground between the parties to these appeals and will be addressed in more detail later in this judgment but there is no question that by early October 2019 the situation in Hong Kong had become dire. Something had to be done. 2. For reasons we shall examine in detail below, the Chief Executive in Council (“CEIC”) determined that what should be done was to introduce a law prohibiting the wearing of face masks and face coverings at certain types of public gatherings. That law, made by the CEIC on 4 October 2019 and coming into effect at midnight on 5 October 2019, is the Prohibition on Face Covering Regulation (“PFCR”).[1] The PFCR was made by the CEIC under section 2 of the Emergency Regulations Ordinance (“ERO”).[2] 3. The question at the heart of these appeals is whether, in the light of the Basic Law of the Hong Kong Special Administrative Region (“Basic Law”), the CEIC was lawfully given power by the Legislative Council to make the PFCR under the ERO. As well as that core question of constitutionality, a number of additional specific legal challenges to the ERO are advanced. These are “the constitutionality issues”. 4. If the ERO is determined to be constitutional and the PFCR duly made thereunder, the other principal question central to these appeals is whether certain of the provisions of the PFCR are a proportionate restriction of protected rights. The appeals raise issues concerning the appropriate standard of review and the application of a proportionality analysis. These are “the proportionality issues”. A.1 The PFCR 5. The PFCR consists of six sections. Section 1 specifies the commencement and section 2 is an interpretation section containing various definitions, including “facial covering” meaning “a mask or any other article of any kind (including paint) that covers all or part of a person’s face”. 6. Section 3 creates an offence of using a facial covering in certain circumstances. It reads: “3. Use of facial covering in certain circumstances is an offence (1) A person must not use any facial covering that is likely to prevent identification while the person is at – (a) an unlawful assembly (whether or not the assembly is a riot within the meaning of section 19 of Cap. 245); (b) an unauthorized assembly; (c) a public meeting that – (i) takes place under section 7(1) of Cap. 245; and (ii) does not fall within paragraph (a) or (b); or (d) a public procession that – (i) takes place under section 13(1) of Cap. 245; and (ii) does not fall within paragraph (a) or (b). (2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 1 year.” 7. Section 4 provides, for a person charged with an offence under section 3(2), a defence of lawful authority or reasonable excuse for using a facial covering in the following terms: “4. Defence for offence under section 3(2) (1) It is a defence for a person charged with an offence under section 3(2) to establish that, at the time of the alleged offence, the person had lawful authority or reasonable excuse for using a facial covering. (2) A person is taken to have established that the person had lawful authority or reasonable excuse for using a facial covering if – (a) there is sufficient evidence to raise an issue that the person had such lawful authority or reasonable excuse; and (b) the contrary is not proved by the prosecution beyond reasonable doubt. (3) Without limiting the scope of the reasonable excuse referred to in subsection (1), a person had a reasonable excuse if, at the assembly, meeting or procession concerned – (a) the person was engaged in a profession or employment and was using the facial covering for the physical safety of the person while performing an act or activity connected with the profession or employment; (b) the person was using the facial covering for religious reasons; or (c) the person was using the facial covering for a pre-existing medical or health reason.” 8. Section 5 gives a police officer power to require a person using a facial covering in a public place to remove the facial covering, failing which an offence is committed, and provides: “5. Power to require removal in public place of facial covering (1) This section applies in relation to a person in a public place who is using a facial covering that a police officer reasonably believes is likely to prevent identification. (2) The police officer may – (a) stop the person and require the person to remove the facial covering to enable the officer to verify the identity of the person; and (b) if the person fails to comply with a requirement under paragraph (a) – remove the facial covering. (3) A person who fails to comply with a requirement under subsection (2)(a) commits an offence and is liable on conviction to a fine at level 3 and to imprisonment for 6 months.” 9. Section 6 extends the time limit for commencement of a prosecution for an offence under section 3(2) or section 5(3) to 12 months from the date on which the offence is committed. A.2 The ERO 10. As already mentioned, the PFCR was made under the ERO. The ERO was enacted on 28 February 1922 and contains three operative sections (sections 2, 3 and 4). The relevant parts of those provisions are identified in Section B.1 below. A.3 The CEIC’s decision to make the PFCR 11. The CEIC’s decision to invoke the ERO and to make the PFCR was taken at a meeting of the Executive Council held on the morning of 4 October 2019. At a press conference that afternoon at which the Chief Executive announced the decision, she emphasised four points: “One – although the Ordinance carries the title ‘Emergency’, Hong Kong is not in a state of emergency and we are not proclaiming that Hong Kong is entering a state of emergency. But we are indeed in an occasion of serious danger, which is a stated condition in the Emergency Regulations Ordinance for the Chief Executive in Council to exercise certain powers, and I would say that we are now in rather extensive and serious public danger. It is essential for us to stop violence and restore calmness in society as soon as possible. We hope that the new legislation can help us to achieve this objective.
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